This autumn, two oil industry executives may be indicted in Sweden for aiding and abetting international crimes in Sudan. Furthermore, the public prosecutor will also likely seek forfeiture of $400 million from their company, Lundin Petroleum, reflecting the benefits derived from its Sudanese operations. The case follows the 2018 French indictment of LafargeHolcim for alleged crimes committed in Syria, showing that corporate liability for international crimes is gaining traction, before European courts at least.

This event aims to discuss the Lundin case, which has the potential of becoming a landmark trial because of the novelty and complexity of the legal issues that the court will have to decide. In particular, with regard to the assessment of the individual criminal liability of the executives of Lundin, the determination of the applicable standards of proof, the question whether a lack of due diligence is sufficient for a finding of guilt, and the limits and overlap of individual criminal liability of corporate directors on the one hand and corporate criminal liability of organisations on the other.

The event will feature three speakers, who will be presenting the various dimensions of the case and will put it into the more general context of the current legal developments with regard to criminal liability of corporations (and their executives) for human rights violations:

• Egbert Wesselink will provide an introduction to Sudan’s oil war, describe Lundin’s role in it, and examine the human rights responsibilities of the company and its shareholders.
• Dr. Mark Taylor will discuss how the Lundin case sits in global developments regarding the criminal liability of corporations for human rights abuses in the context of conflicts.
• Miriam Ingeson will give a Swedish perspective to the legal framework of the case and analyse the legal issues that it raises at the intersection between national and international law.

The speakers:

• Egbert Wesselink serves as Senior Advisor in PAX, the Dutch peace movement, where he is responsible for the programme on Natural Resources, Conflict and Human Rights, that focusses on the impact of international enterprises on the rights and interests of communities, notably in Sudan, South Sudan, DRC and Colombia. He represents PAX in several multi-stakeholder initiatives, including the Voluntary Principles on Security and Human Rights in an effort to increase the impact of emerging international guidelines, and advises various enterprises.
• Dr. Mark Taylor is a Postdoctoral Fellow, Department of Private Law, University of Oslo and presently a Visiting Fellow at the Amsterdam Center for International Law, University of Amsterdam. Mark writes on legal and policy frameworks applicable to responsible business and will publish the book “War Economies and International Law: Regulating the Economic Activity of Armed Conflict” (based on his PhD thesis) with Cambridge University Press. Mark is an advisor to various initiatives in the field of responsible business and is a member of the Norwegian Ethics Information Commission (2018-2019), a government commission which is considering a proposed law on human rights information in the global value chains of Norwegian business.
• Miriam Ingeson is a PhD candidate at Uppsala University, Sweden.  Her research project explores corporate criminal liability in international criminal law, and the intersection of domestic criminal law and public international law. She has previously held positions with the Swedish Prosecution Authority, the Folke Bernadotte Academy and the Swedish Ministry of Justice.

The moderator:

• Dr. Antoine Duval is Senior Researcher at the Asser Institute and the coordinator of the Doing Business Right project.

For some background material on the case and its wider context, see www.unpaiddebt.org & www.lundinhistoryinsudan.com.

More information and registration Here!

The National Human Rights Commission of India (NHRCI) was established on 12 October 1993 on the basis of the Protection of Human Rights Act (PHRA) as amended by the Protection of Human Rights (Amendment) Act No 43 of 2006. It is a quasi-judicial institution whose purpose is to protect and promote human rights, which are understood to be those rights relating to life, liberty, equality and dignity as enshrined in the Indian Constitution and in applicable international covenants (see s.2 (1)(d)). The duties of the Commission include inquiring into complaints ex officio or upon request, intervening in court proceedings relating to human rights, analysing legislative acts and making recommendations, studying international treaties and guiding their effective implementation, undertaking and promoting research, and raising awareness of human rights inter alia (see s.12 (a)-(j)). Section 21 of the PHRA further allows for the establishment of State Human Rights Commissions, which have largely the same mandate as the NHRCI with the exception of section 12 (f) regarding the study of international treaties (see also here). There are presently twenty-five state commissions. The National Human Rights Commission is headquartered in New Delhi.

This article analyses two types of actions in order to observe the extent to which the NHRCI has assumed its role in promoting access to remedy in business and human rights cases. According to the 2010 Edinburgh Declaration of the International Co-ordinating Committee of National Institutions for the Promotion and Protection of Human Rights (ICC), the participation of NHRIs in the remedial process may be either direct or indirect. As will be shown, the National Human Rights Commission of India has been quite shy in tackling issues of access to remedy whether directly or indirectly.

As to direct participation, the Commission is empowered to inquire into complaints alleging violations of human rights or negligence in the prevention of such violations by a public servant. It may do so either ex officio, on petition by a victim or following a court order (see s.12 (a)). While such an inquiry is ongoing, the NHRCI enjoys all the powers of a civil court trying a suit under the Code of Civil Procedure of 1908. Subsequent to reviewing the factors that inhibit the enjoyment of human rights, the Commission may recommend appropriate remedial measures (see s.12 (e)). The PHRA does not explicitly state whether the NHRCI may entertain complaints against companies. Yet the NHRCI’s 2012 Code of Ethics for the Indian Industry points out that there is no apparent reason not to extend the application of s.12 (a) to private persons (see here at page 28-29). This analysis nevertheless seems to be at odds with the practice of the Commission, which has been rather reluctant to exercise jurisdiction over companies. For instance, the NHRCI has carried out numerous investigations into allegations of child labour and bonded labour. These investigations were however carried out as a result of a Supreme Court order vesting the Commission with the power to oversee and monitor the implementation of the Bonded Labour System (Abolition) Act of 1976. The NHRCI has also intervened in cases relating to development-induced displacement, particularly in the cases of Special Economic Zones in India. It did not do so directly however. For example, upon receiving complaints about human rights violations concerning the POSCO project on Odisha, the Commission conducted a fact-finding mission and issued recommendations for the government on how to deal with the matter. Another way in which the Commission has tackled corporate human rights abuses is through its power as a civil court and through the intermediary of the State duty to protect. The NHRCI regularly directs local authorities to inspect businesses or enterprises against which complaints of human rights abuses have been made.[1] If the authorities’ report is unsatisfactory, the Commission may send its own inspectors to conduct a fact-finding mission. In some cases, the NHRCI directs the local authorities to pay relief. The Commission found that its sustained interventions in these cases usually leads to corrective action.[2] The NHRCI therefore seems to have rather opted for a back route to acting on business-related human rights complaints. It is nevertheless difficult to see why the Commission has shown this reluctance seeing as its mandate is rather permissive.  A more explicit mandate to deal with corporate human rights abuses would perhaps spur the NHRCI’s direct participation, which is overall quite lacking.

As to indirect participation, the National Human Rights Commission of India has had a visible presence in the sphere of business and human rights but less so in that of access to remedy. For instance, the NHRCI commissioned a study in April 2012 concerning the development of a Code of Ethics for the Indian Industry. The purpose of this study was to “[…] attempt to understand a range and quantity of ethical issues that reflect the interaction of profit-maximising behaviour with non-economic concerns […]”. Nevertheless, as far as access to remedy is concerned, this study contains nothing more than a reiteration of the UNGPs’ third pillar (see here at page 24). Nonetheless, the Commission has established a Core Group on Business, Environment and Human Rights, has convened no less than forty-three workshops on the elimination of bonded labour, and it has been nominated by the Commonwealth Forum of National Human Rights Institutions as the focal point for business and human rights matters. It also regularly convenes conferences on business and human rights (see for instance here and here). Most recently, following the conference on 2 July 2018, the NCHRI committed to engage with the Indian Ministry of Corporate Affairs in order to formulate a National Action Plan and to conduct a base line survey on business and human rights in the country.

In conclusion, the NHRCI has a wide mandate to protect and promote human rights but has yet to attain its full potential in ensuring access to effective remedy. It has not made full use of its complaint procedure, which could extend to cover human rights abuses by private parties. Furthermore, its role as a focal point for expertise on business and human rights seems to deal with access to remedy as a peripheral issue.

[1]           National Human Rights Commission, ‘Business and Human Rights: The Work of the National Human Rights Commission of India on the State’s Duty to Protect’

[2]           National Human Rights Commission, ‘Business and Human Rights: The Work of the National Human Rights Commission of India on the State’s Duty to Protect’